Sunday, December 17, 2006

An Open Letter To The Attorney General

(Published in the NST, 17th Dec 2006 as "An Open Letter To The Attorney General: Intervene To Ensure Justice For All")

Dear Sir,

I have had the privilege of meeting you and also of appearing against you in several constitutional cases. I have found you to be reasonable, fair minded and open to all views. It is to those qualities that I now appeal.

I write concerning the matter of Anthony Rayappan and all matters like it. At the core of disputes of this nature is the issue of access to justice. Reactions to the actions of the religious authorities have not been so much about the claims of these authorities but about the recourse to the syariah courts which have had the consequence of denying the claims of family members and of their right to be heard.

I believe it bears restating that under our constitutional system every person is guaranteed a right to access the courts to address a grievance. Where there is a right, there is a remedy. And yet, in these cases the reverse appears to be true. Parties who have a legitimate basis are being shut out from the courts. Worse, the Constitution is being used to justify this unfairness.

It may have been the case that there was a reasonable basis to suppose that Rayappan, or M.Moorthy before him, had in fact converted to Islam. I do not know. It may also have been the case that the family members of the deceased had a basis to conclude that they had not. Both sides were as such entitled to get a declaration by a court in order to be sure about what it is had to be done.

And that is the way it should have been with all parties appearing before a judge of the High Court and presenting their respective cases. That is how it has always been, even after the introduction of Article 121(1A) of the Federal Constitution.

The affair, like the one before it, became controversial, because the Majlis Agama (Religious Council) took the view that not only was it entitled to move the syariah court for a declaration, it was the only manner in which this issue could be solved, as the syariah court had exclusive jurisdiction.

This view is erroneous. The syariah court only has a limited jurisdiction over persons professing Islam. The Majlis Agama is a body corporate and cannot in law be a “person” or a “person professing Islam”. Additionally, the family members are not Muslims. There is no question of their “submitting” to jurisdiction as has been suggested nor can the syariah courts compel their attendance as was attempted. The Constitution itself has defined and limited the jurisdiction of the syariah courts and one cannot create jurisdiction by submission. Even if there was law to that effect, that law would not be constitutional. As such, it is only the High Court that can hear disputes of this nature.

Article 121(1A) does not change this. Subsequent to the amendment which introduced this provision, the apex court in at least three decisions explained the manner in which the jurisdiction of the High Court is to be determined. In particular, it was declared that where the parties to the dispute include non-muslims the High Court should hear the matter.

That is the law. Nothing has changed in between and yet for reasons beyond comprehension the view of the Majlis has, by default or otherwise, become the definitive view. This has allowed for an undermining of the Rule of Law and of constitutionalism. It has also allowed for the Constitution to be turned on its head. How else can one describe a situation where access to justice is denied in the name of the Constitution?

I write to you as the principal guardian of the Constitution. I urge you to intervene to correct this sad state of affairs. As the Attorney General, I would say that the burden is squarely on you. You have the standing and influence to play a pivotal role in bringing some sense to the situation. The scenarios that have played out involve questions of public law in as much as they do private law. They further involve state or state supported actors who are answerable to the state. The perceived unfairness has resulted in an erosion of confidence in the key institutions of the nation and the suggestion that discriminatory practices abound.

There are several ways in which you can approach the issue. Forgive my boldness for taking the liberty of suggesting them. I do so with the certainty that you will see my doing so as being prompted by nothing more than my duty as a citizen to act in the interests of my nation. As Malaysians, we are all charged with finding constitutionally just solutions.

First, as Attorney General you can and must publicly express your view as to how the Constitution guarantees equal access to justice and equal protection for all. You must express your view as to how situations like this should be handled. A statement by you will be of great influence and go a long way in guiding those in doubt or who are of mistaken impression. It is equally crucial for you to correct leaders when they air incorrect views. I believe that, to an extent, uninformed views have entrenched the mistakes further.

Second, your chambers could undertake a review of the training currently undergone by civil servants, especially those in the departments most involved in issues of this nature, with a view to ensuring that these individuals appreciate the constitutional framework in which they operate and the permissible limits. This would have to include the syariah court judges. These courts are established by law enacted by constitutional mandate, as is the law applied by these courts. It is imperative that the misimpression that the syariah courts apply syariah as distinct from enacted law be corrected. I believe that it is this misimpression that has allowed for a certain mindset to develop where questions of religion are put before duties and obligations in law.

Thirdly, where state actors are involved, your chambers could take a more proactive position in ensuring that legal positions are consistent with the Constitution. Where there are legal officers involved who are directly under your control, this is essential. Positions in court must be taken that are constitutionally correct so that no matter who wins at the end of the day, the Constitution and constitutionalism are not sacrificed. As a fellow lawyer, you would appreciate that all lawyers are charged as officers of the court with the pursuit of truth.

The situation we find ourselves in is not just a matter for the judiciary although it does play a key role. Controversy will not occur where Malaysians are all of like view where basic rights are concerned. Disputes will occur but we will be able to deal with this in the way we have always done; with civility, and with attention to and consideration of the interests of all.

In concluding, I urge you once again to come to the defence of the Constitution and the nation. They both need you.

7 comments:

Shanmuga.K
said...

Excellent piece, Imtiaz.

Interesting decision to address the letter to the AG. In the traditional Westminster model, the Attorney General is a member of Parliament, and answers to members of Parliament for his actions. In Malaysia, the AG is not an MP (this stopped in the 70s I believe) and hence his discretion effectively cannot be questioned at all.

If you check out the AG's Chambers website, we also see that its Advisory Division have a section who advise the government on whether our laws and international treaties are "Syariah compliant". See http://www.agc.gov.my/agc/agc/adv/advBM.htm

With respect, I do not see how the AG's chambers can be concerned about this. Our general laws must be Constitutionally compliant and must be passed with the democratic will of the people. There seems to be no need to test municipal laws with the theological dogma of a particular religion.

Hence your plea to him to remind his officers, and the public at large of our "document of destiny" as Professor Shad calls it, is timely.

Well done to you, and to HAKAM, for drawing attention to this problem.

There has been no reply. I do not expect one. I saw the NST article and it underscores the confusion. I agree that is only the individual concerned who can decide. The Constitution declares in Article 11 that 'Every person has the right to profess and practice his religion of choice.'